Creative Counsel: Live Gig Legalities

March 17, 2015

Your Questions Answered!
Write in with your questions about the confusing legalities in the world of music or filmmaking, and make informed, professional decisions that affect your creative work. Manojna Yeluri, Founder of Artistik License, clears the fog with her regular column on the questions you ask, to get the answers that you need.

Artistik License is a legal education and services platform dedicated to addressing the needs and queries of artists and creative entrepreneurs in India.

This edition of Creative Counsel looks at your questions about the legal ramifications of being a performing artist at live shows.

There are several rights at play when creating, distributing and performing musical content. Most of these rights flow from copyright ownership, however there is a separate set of rights that also governs the performer – these are known as Performer’s Rights. Following the 2012 amendment to the Indian Copyright Act, Sections 38A and 38B focus on the rights of performers by seeking to address the performer’s need to actually permit someone else recording and distributing a copy of their performance, as well as to ensure that the performer gets due credit for the work they have done.

In simple terms this means the following:

No one can actually record your performance, and then distribute or sell copies of this recording without your explicit permission and;

You have the right to lay a claim to a recording of your performance, should that recording miss any mention of your name or the right to prevent the distribution of that recording, if it somehow compromises on the creative integrity you intended for the performance.

These are actual rights that are provided by the law that all performers need to be aware of. Furthermore, these rights apply to performers regardless of whether they are performing their own original content or are re-arranging or re-interpreting content that belongs to another artist.

This is probably one of the biggest problems facing live musicians and performers, not just across the country, but almost everywhere in the world. To this day, musicians have to deal with delayed payments from venues and event organisers, or worse still, non-payment. This problem, tinged as it is with possible legal ramifications, is also an issue that needs to be addressed through extra-legal remedies, and so the best way to understand this problem is by looking at it through the following three heads:

1. Prevention:
Musicians, regardless of whether they identify themselves as indie, classical, folk or formal, need to make better use of certain regulatory tools made available to them. In order to invoke a certain degree of formality, professionalism and legal protection, it is always advisable to put some form of basic documentation in place. Such documentation must address the responsibilities of the musician and the organiser, with a focus on what happens when either one of them fails to fulfil their obligations. Such clarity might help avoid future payment problems.

2. Resolution:
In the event of non-payment, performers must contact the organisers and follow up by seeking the necessary legal advice required in such situations. Depending on the seriousness of the issue, the performer may seek the counsel of a lawyer who might be able to draft an adequate legal notice directing the organiser to pay or fulfil the terms that were previously agreed upon.

3. Communication:
The above two methods are often proved useless because a major chunk of the entertainment industry prefers to work on a system of rules and norms it has created for itself. This is where extra-legal remedies step in. It is important for musicians and venues alike to voice their opinions on each other, particularly with reference to issues like non-payment. Public opinion and community opinions often have a large bearing on issues such as these, which can cost an organiser, his or her reputation. By creating and engaging with a wider community of performers, a wronged performer might also find that his or her bargaining power has increased, thereby lending greater legitimacy to the steps he or she chooses to take against the organiser.

It is possible to draft an agreement on any subject, so long as such a subject is not illegal. Instead of drafting a hefty and elaborate agreement, it is always possible to send across a set of terms of conditions, along with your tech rider. Such a practice serves to clarify your intentions and can cover aspects that are most important to you and your performance.

The terms of such a contract vary according to the duration of the performance, the purpose of the performance, the venue, and of course, the performers themselves. Ordinary terms (besides payment) to expect may include a description of the technical equipment to be used on stage, the length of the performance and the details of F&B concessions provided by the organiser. An important section that often goes missing in India, is a section dedicated to the health and safety of the performer, especially when he or she is performing on stage. This is because occupational safety and health, has not yet assumed the role of importance that it ought to be receiving, particularly in contexts outside of traditional employment.

This is a tricky answer to provide because once again it depends on the frequency and the location of your performances. A performer’s rights society is essentially meant to safeguard the interests of performers, composers and publishers by ensuring that they receive the royalties payable to them from every performance. Like with all collection societies, it is necessary to be wise and cautious before becoming members of such societies however, it might be worth considering membership especially when performing or touring internationally. Always speak with a lawyer or a manager before making any decisions on such membership.

Manojna Yeluri is an independent legal consultant advising artists and startups on issues related to IPR and entertainment law. She also founded and runs Artistik License – a legal education initiative for artists working in India that’s meant to empower artists through simplified legal knowledge. When she's not talking to artists, you can find her drinking tea and trying her hand at all kinds of DIY craft projects. You can read more about her work with Artistik License at artistiklicense.wordpress.com